I have a new paper up on SSRN, appearing shortly in the Wayne Law Review, The Assumptions Behind the Assumptions in the War on Terror: Risk Assessment as an Example of Foundational Disagreement in Counterterrorism Policy. Here is the abstract from SSRN, with apologies from the Department of Shameless Self-Promotion:
This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict.
The article takes risk assessment in counterterrorism, using cost benefit analysis, as an example of a foundational disagreement that cannot easily be elided. Examining an extreme, indeed crude, recent example of cost benefit analysis applied to the risks of terror and the costs of counterterrorism – John Mueller’s widely noticed Overblown – the article suggests that cost benefit analysis, at least applied in this way, runs roughshod over other important values in counterterrorism policy, such as justice, but in addition, makes radical yet unstated assumptions about what cost benefit analysis seeks to compare in establishing counterterrorism policy or estimating the risks and costs of terrorism – unstated assumptions that, in fact, assume the conclusion.
The article notes that cost benefit analysis tends to promote a policy-minimalizing “event specific catastrophism” – seeking above all to prevent simply the next, serial terrorist attack, with however no greater strategic vision. Indeed, the article says in conclusion (as Philip Bobbitt has noted) cost benefit analysis is “relentlessly tactical,” not strategic; it also tends toward serial ‘event specific catastrophism’ as its analytic frame; and it is a method of evaluating proposed courses of action, not generating them, and hence promotes a strategically questionable tendency to reaction as a response to terrorism.
This article presents these ideas in brief fashion, however, as the first draft in a larger project on cost benefit analysis and counterterrorism, and it does so by reference to a book that is unabashedly crude in its approach to both cost benefit analysis and terrorism/counterterrorism. The critical project will extend beyond this particular article, which is in effective a a first pass at developing a critique. It is also an article that does not extend beyond events of early 2007 (when the original address was given) and should be read in that light.
It was, by the way, super nice of Larry Solum to post a reference to this paper on his Very Great Legal Theory Blog. (Thanks Larry.) Even nicer of him to call it ‘highly recommended’! Alas, I’m not so sure I highly recommend it, though. I picked an easy target and then scattered shots all over the place. There are some important things in there, but I don’t think it’s the best organized or written thing I’ve done.
But I think the topic is hugely important, and I plan to pursue it in a series of articles or some kind of venue.
One perhaps overlooked part of the article, however, is the contrast of cost benefit analysis comparisons in private business settings versus public governmental settings. As the article notes, in the private firm setting, the comparisons are to an important extent automatically self-constraining – meaning that you don’t wind up comparing completely wacko things, or in other words, private firms automatically tend to limit their comparisons to things that are in some real sense comparable – because they have no special obligation or necessity to be involved in any particular line of business.
Government, on the other hand, doesn’t have that luxury – it must be involved in radically different forms of comparison because it has to be involved in the provision of things that involve different and plural values. The mechanisms of comparison developed for private firms, however, tend to be developed – NPV, etc. – within a constrained universe of things to be evaluated and compared, in a way that is not true of public institutions. This isn’t exactly news, of course; public management theory has recognized this difference between it and private firm management decision theory for a long, long time. But I don’t see the distinction showing up so much in the law and economics literature as I would have thought.
This is one of those observations that tends naturally to occur to someone like me, of that small subset of people who do both finance law and national security and public international law. There is something peculiar, at least to a finance professor like me, to seeing a technique that has a routine, less than transcendental meaning within the world of private business, ratcheted up to be a kind of philosophical talisman to be applied to, well, everything. Tools like NPV have meaning – says this finance law professor – only within bounded universes in which something else sets the terms of what can be meaningfully compared. NPV depends upon exterior concepts of meaning; it does not generate them itself.